United States of America v.  Robert Washington

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4653 
ROBERT WASHINGTON,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CR-02-027)
Argued: November 30, 2004
Decided: February 11, 2005
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge King wrote the opinion, in which Judge Niemeyer and Judge
Luttig joined.
COUNSEL
ARGUED: Paul Samuel Rosenzweig, Washington, D.C., for Appel-
lant. Michael Joseph Leotta, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio, United
States Attorney, Baltimore, Maryland, for Appellee.

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OPINION
KING, Circuit Judge:
Robert Washington appeals his conviction and sentence in the Dis-
trict of Maryland for possession of a firearm by a convicted felon, in
contravention of 18 U.S.C. § 922(g)(1). On appeal, Washington
makes three contentions: (1) that the district court’s failure to compel
the Government to grant immunity to a potentially exculpatory
defense witness denied him his constitutional right to a fair trial; (2)
that the evidence was insufficient to support his conviction; and (3)
that the court erroneously enhanced his sentence by two levels for
subornation of his wife’s perjured trial testimony. As explained
below, we reject Washington’s first two contentions. In light of the
Supreme Court’s recent decision in United States v. Booker, No. 04-
104, 2005 WL 50108 (U.S. Jan. 12, 2005), however, we vacate Wash-
ington’s sentence and remand.
I.
On January 23, 2002, Washington was indicted by the federal
grand jury in Maryland for possession of a firearm by a convicted
felon. See 18 U.S.C. § 922(g)(1). At trial in April 2002, Officer Todd
Tugya of the Baltimore City Police Department testified that, on the
evening of November 11, 2001, he responded to an assault at 620
North Robinson Street. There he met Joseph Gilmore, who had a cut
under his eye and a swollen lip. Gilmore led Officer Tugya to a
nearby residence at 3037 East Monument Street to point out the per-
son who had hit him in the face. When Officer Tugya knocked on the
door and identified himself as a police officer, a thickly built black
male, wearing sweatpants, a knit cap that covered braids, and no
shoes or shirt, opened the door while holding his left hand behind his
back. After repeated requests from Officer Tugya for the person to
step outside and "let me see your hands," the man dropped a black
handgun to the floor from behind, which landed between his legs. He
then ran from the house without being apprehended. Officer Tugya
promptly recovered the firearm, a loaded 9 millimeter Ruger P89
semi-automatic pistol.
Two hours later, Officer Tugya identified Washington in a photo
line-up as the man who had dropped the Ruger pistol and absconded
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from the house on East Monument Street, an identification he con-
firmed at trial. Detective Alexander Lee testified that, later on
November 11, 2001, he obtained written permission from Washing-
ton’s wife to search the residence at 3037 East Monument Street, and
that he had seized a box from a second floor bedroom. The box had
Washington’s name on it, and it contained two loaded ammunition
magazines that fit the Ruger pistol.
The parties stipulated at trial that Washington had been previously
convicted of a felony, that his right to own or possess a firearm had
not been restored, and that the firearm in question had travelled in
interstate commerce. In his defense, Washington called only one wit-
ness, his wife Joyce, who denied that Washington was home on the
evening of November 11, 2001. She testified that the individual who
opened the front door for Officer Tugya was James Hill, with whom
she was having an affair. On cross-examination, Mrs. Washington
acknowledged that, although she had spoken to the police about her
husband’s arrest at least four times, she had never claimed that her
husband was not at home that evening or that Hill was the man they
sought.
Washington also sought to introduce into evidence the testimony
of Gilmore (the assault victim) or, in the alternative, Gilmore’s affida-
vit. Gilmore had executed an affidavit for Washington recanting his
earlier written and tape-recorded statements to the police that identi-
fied Washington as the person who had assaulted him on November
11, 2001, and who possessed the firearm that evening. Gilmore’s affi-
davit maintained that his prior statements were false and had been
coerced by police officers who, among other improprieties, had
denied him medical treatment for his injuries. Prior to Washington’s
trial, the Government advised the district court that Gilmore’s testi-
mony could subject him to obstruction of justice and perjury charges.
The court then appointed counsel for Gilmore, who thereafter indi-
cated that, if called to testify, Gilmore would invoke his Fifth Amend-
ment privilege against self-incrimination.
Washington then requested the court to compel the Government to
grant Gilmore immunity from prosecution, which the Government
declined to do, in order to permit him to testify on Washington’s
behalf. The court denied Washington’s motion, finding that the prose-
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cution was not using its authority abusively in pointing out that Gil-
more’s testimony could result in an obstruction of justice or perjury
charge. Indeed, according to the trial judge, "any responsible prosecu-
tor" would have brought the witness’s potential criminal exposure to
the court’s attention. On April 17, 2002, after a three-day trial, the
jury convicted Washington of the § 922(g)(1) offense.
On August 5, 2003, the district court conducted Washington’s sen-
tencing hearing. In determining Washington’s sentencing range, the
court enhanced his offense level by two levels for obstruction of jus-
tice under § 3C1.1 of the Sentencing Guidelines, finding that Wash-
ington had suborned perjury when he called his wife to the stand. See
U.S. Sentencing Guidelines Manual § 3C1.1.1 In making its § 3C1.1
ruling, the court found that Joyce Washington’s trial testimony was
"clearly false" and "incredible," that her evidence went to a core issue
in the trial, and that Washington knew the testimony to be false. The
court concluded that Washington "proffered testimony from his wife,
or he sat there while his wife testified to something which was simply
factually not true." Finally, the court sentenced Washington to 120
months, the statutory maximum, to be followed by three years of
supervised release.2
1Washington’s Presentence Report did not recommend the § 3C1.1
enhancement. In letters submitted to the district court prior to the sen-
tencing hearing, the Government urged the court to apply the § 3C1.1
enhancement on four grounds: (1) Washington made a false statement to
Officer Tugya when he opened the door to 3037 East Monument Street;
(2) he did not obey Officer Tugya’s order to step away from the pistol;
(3) he fled the scene; and (4) he offered the false testimony of his wife
and attempted to offer the false testimony of Gilmore. The court applied
the § 3C1.1 enhancement only because Washington suborned perjury in
calling his wife to give false testimony at trial.
2Washington’s Presentence Report recommended a total offense level
of 24 and a criminal history category of V, and the applicable Guideline
range of imprisonment was therefore 92 to 115 months. The trial judge
stated at the sentencing hearing that "I would have gone to the top of that
range" (or 115 months). The § 3C1.1 enhancement increased Washing-
ton’s offense level to 26 under the Guidelines, permitting the court to
sentence Washington to 110 to 137 months. Sections 922(g)(1) and
924(a)(2) of Title 18 contain a statutory cap of ten years (120 months).
Accordingly, as the district court observed, "what we’re talking about [in
applying the § 3C1.1 enhancement] is five months," i.e., a sentence of
120 months instead of 115 months.
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Washington has filed a timely notice of appeal, and he raises on
appeal the contentions of error spelled out above.3 We possess juris-
diction pursuant to 28 U.S.C. § 1291, and we assess Washington’s
contentions in turn.
II.
A.
First, Washington contends that, under his Sixth Amendment right
to call witnesses, the district court should have directed the Govern-
ment to grant Gilmore immunity from prosecution, in order for his
exculpatory evidence to be presented at trial.4 He maintains that the
Government’s assertion that Gilmore could be charged with perjury
or obstruction of justice forced him to assert his Fifth Amendment
privilege, constituting prosecutorial overreaching. Such a contention
presents a mixed question of law and fact, and we review a district
court’s factual findings for clear error and its legal determinations de
novo. See United States v. Ellis, 121 F.3d 908, 927 (4th Cir. 1997)
(observing that review of district court’s determination of prosecu-
torial misconduct is mixed question of law and fact); see also United
States v. Ramos-Oseguera, 120 F.3d 1028, 1037 (9th Cir. 1997)
(reviewing district court’s findings on decision not to compel Govern-
ment to grant immunity for clear error), overruled on other grounds
by United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000). As
3Four days after the Supreme Court’s June 2004 decision in United
States v. Blakely, 124 S. Ct. 2531, Washington directed this Court’s
attention to its potential implications for his appeal. Letter from Wash-
ington’s counsel, Mr. Rosenzweig, to this Court (June 28, 2004) (Blakely
"bears directly on Mr. Washington’s challenge to the obstruction of jus-
tice sentencing enhancement and supports his alternative submission that
his sentence should be vacated and the case remanded for resentenc-
ing."). On January 12, 2005, the Court held in Booker that Blakely
applies to the federal Sentencing Guidelines. That same day, Washington
supplemented his brief in this proceeding with the Booker decision. Let-
ter from Washington’s counsel to this Court (January 12, 2005).
4Pursuant to the Sixth Amendment, an accused possesses, inter alia,
the right to "compulsory process for obtaining witnesses in his favor."
U.S. Const. amend. VI.
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explained below, Washington’s contention is without merit and must
be rejected.
We have consistently held that a district court is without authority
to confer immunity on a witness sua sponte. See United States v.
Klauber, 611 F.2d 512, 517 (4th Cir. 1979) ("there was no power in
the district judge to confer immunity"). Indeed, as we recently
observed in United States v. Moussaoui, 382 F.3d 453, 466 (4th Cir.
2001), "no power to grant immunity is found in the Constitution."
Under the applicable principles, only the prosecution is entitled to
seek witness immunity in a federal criminal case. See, e.g., 18 U.S.C.
§ 6003(b) ("A United States attorney may, with approval of the Attor-
ney General . . . request an order [of immunity from the district
court]."); United States v. Karas, 624 F.2d 500, 505 (4th Cir. 1980)
("The decision to grant immunity is within the sole discretion of the
prosecution."). While a district court may, in very limited circum-
stances, compel a United States Attorney to grant such immunity, a
"‘defendant bears a heavy burden when seeking to have the district
court compel the grant of immunity.’" United States v. Mitchell, 886
F.2d 667, 669 (4th Cir. 1989) (quoting United States v. Gravely, 840
F.2d 1156, 1160 (4th Cir. 1988)). We have held that a district court
is without authority to issue such an order unless a defendant has
made (1) "a decisive showing of prosecutorial misconduct or over-
reaching and (2) the proffered evidence would be material, exculpa-
tory and unavailable from all other sources." United States v. Abbas,
74 F.3d 506, 512 (4th Cir. 1996).
The district court denied Washington’s request for immunity to
Gilmore, finding that Washington had failed to show any prosecu-
torial misconduct or overreaching. First of all, the court recognized
that the prosecutor’s statement that Gilmore possibly faced prosecu-
tion for perjury or obstruction of justice by repudiating his earlier
statements was, in these circumstances, the act of a prudent prosecu-
tor. See Mitchell, 886 F.2d at 670 (observing that witness is not enti-
tled to immunity when witness is subject of criminal investigation).
Furthermore, Washington proffered no evidence that Gilmore had
been coerced into asserting his Fifth Amendment privilege by threats
of prosecution. See, e.g., United States v. Morrison, 535 F.2d 223,
227 (3d Cir. 1976) (observing that Government improperly coerced
witness to plead Fifth Amendment through threats of prosecution and
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"highly intimidating personal interview").5 On these facts, the district
court lacked the authority to compel the Government to grant Gilmore
immunity, and it properly declined to do so.
B.
Washington next maintains that the trial evidence was insufficient
to prove his guilt on the § 922(g)(1) offense. When considering this
contention, we are obliged to "sustain the jury’s verdict ‘if there is
substantial evidence, taking the view most favorable to the Govern-
ment, to support it.’" United States v. Stockton, 349 F.3d 755, 760-61
(4th Cir. 2003) (quoting United States v. Glasser, 316 U.S. 60, 80
(1942)). In determining whether the evidence is "substantial," we "in-
quire whether there is evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a defen-
dant’s guilt beyond a reasonable doubt." Id.
The evidence in Washington’s trial, viewed in the light most favor-
able to the Government, is more than sufficient to support the guilty
verdict. Washington stipulated that he had been convicted of a felony,
that he had not had his right to own or possess a firearm restored, and
that the firearm in question had travelled in interstate commerce. The
only issue reserved for resolution by the jury was whether Washing-
ton had knowingly possessed the Ruger pistol. See United States v.
Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc) (explaining that
a violation of § 922(g)(1) requires Government to prove: "(1) the
defendant previously had been convicted of a crime punishable by a
term of imprisonment exceeding one year; (2) the defendant know-
ingly possessed . . . the firearm; and (3) . . . the firearm had travelled
in interstate or foreign commerce"). Officer Tugya’s trial identifica-
tion of Washington as the individual who was holding the Ruger pis-
5Washington alleges that the actions of the authorities in coercing Gil-
more into incriminating Washington, combined with the prosecutor rais-
ing the specter of an obstruction of justice or perjury charge, required the
district court to compel the prosecution to grant immunity. However,
Washington has not shown how police misconduct, if any existed, could
be attributed to the prosecutors. See Jean v. Collins, 221 F.3d 656, 662-
663(4th Cir. 2000) (en banc) (Wilkinson, C.J., concurring) (declining to
impute misconduct of police officers to prosecutors).
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tol in the doorway of 3037 East Monument Street, plus the box found
and seized from the second-floor bedroom — with Washington’s
name on it and containing two loaded magazines that fit the pistol —
was sufficient proof (if credited by the jury) that Washington had
knowingly possessed the firearm. See United States v. Sun, 278 F.3d
302, 313 (4th Cir. 2002) ("[W]e do not review the credibility of the
witnesses and assume the jury resolved all contradictions in the testi-
mony in favor of the government."). Accordingly, Washington’s chal-
lenge to the sufficiency of the trial evidence must be rejected.
C.
Washington’s final contention is that the district court erroneously
enhanced his sentence, pursuant to § 3C1.1 of the Guidelines, for sub-
ornation of his wife’s perjured trial testimony. We assess Washing-
ton’s challenge to this enhancement in light of the Supreme Court’s
recent decision in United States v. Booker, No. 04-104, 2005 WL
50108 (U.S. Jan. 12, 2005). Id. (holding Sixth Amendment contra-
vened when sentencing court, acting pursuant to Guidelines, imposes
sentence greater than the maximum authorized by facts found by jury
alone).6 Because Washington asserted this challenge to his sentence
for the first time on appeal, we review his claim for plain error only.
See Breyer Opinion at 25 ("reviewing courts to apply ordinary pru-
dential doctrines, determining, for example, whether the issue was
raised below and whether it fails the ‘plain-error’ test"); United States
v. Hughes, No. 03-4172, 2005 WL 147059, at *4 (4th Cir. Jan. 24,
2005).7 The plain error mandate of United States v. Olano, 507 U.S.
725, 732 (1993), is satisfied if: (1) there was error; (2) it was plain;
and (3) it affected the defendant’s substantial rights. If these three
conditions are met, we may then exercise our discretion to notice the
error, but only if it "seriously affect[s] the fairness, integrity or public
6In Booker, there are two separate opinions for the Court, the first
authored by Justice Stevens and the second by Justice Breyer (hereinafter
the "Stevens Opinion" and the "Breyer Opinion").
7Although appellate contentions not raised in an opening brief are nor-
mally deemed to have been waived, see Edwards v. City of Goldsboro,
178 F.3d 231, 241 n.6 (4th Cir. 1999), the Booker principles apply in this
proceeding because the Court specifically mandated that we "must apply
[Booker] . . . to all cases on direct review." Breyer Opinion at 25.
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reputation of judicial proceedings." Id. (citation and internal quotation
marks omitted).
The Olano conditions are readily satisfied here. First, under
Booker, the district court’s imposition of the 120-month sentence on
Washington was error. The § 3C1.1 enhancement resulted in a sen-
tence exceeding the maximum, i.e., 115 months, authorized by the
jury verdict pursuant to the then-mandatory Guidelines regime. And
the facts underlying the enhancement were not proved to the jury
beyond a reasonable doubt, but were found by the sentencing judge
by a preponderance of the evidence. See Stevens Opinion at 20 ("Any
fact . . . which is necessary to support a sentence exceeding the maxi-
mum authorized by the facts established by . . . a jury verdict must
be . . . proved to a jury beyond a reasonable doubt."); Hughes, at *4.
Next, pursuant to Booker, the error resulting from the sentence
imposed by the district court is plain "at the time of appellate consid-
eration." United States v. Maxwell, 285 F.3d 336, 342 (4th Cir. 2002)
("[n]otably, the error need not be plain at the time the district court
erred"); see Hughes, at *4. And this error affected Washington’s sub-
stantial rights. Because Washington challenges his sentence on the
ground that it was greater than the maximum authorized by the facts
found by the jury alone (as in Hughes), and the trial judge specifically
added five months to his sentence on the basis of facts "not proved
to the jury," the error was, in these circumstances, prejudicial.
Hughes, at *5; accord United States v. Promise, 255 F.3d 150, 160
(4th Cir. 2001) (en banc) (holding that Apprendi error resulting in
increased sentence affects defendant’s substantial rights).
Finally, we exercise our discretion to notice the error with respect
to Washington’s sentence because it "seriously affect[s] the fairness,
integrity or public reputation of [the] judicial proceedings." See
Olano, 507 U.S. at 732 (citation and internal quotation marks omit-
ted). The constitutional error committed by the district court, sentenc-
ing Washington based on facts not found by the jury, added at least
five months to Washington’s term of imprisonment. And, impor-
tantly, as Judge Wilkins observed in Hughes, "the fact remains that
a sentence has yet to be imposed under a regime in which the Guide-
lines are treated as advisory," and, "[w]e simply do not know how the
district court would have sentenced [Washington] had it been operat-
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ing under the regime established by Booker." Hughes, at *5 n.8. We
therefore exercise our discretion to notice this error, vacate Washing-
ton’s sentence, and remand for resentencing.8
III.
Pursuant to the foregoing, we affirm Washington’s conviction,
vacate his sentence, and remand for resentencing.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
8Washington’s sentencing contention presented an unresolved question
in this Circuit: whether the calling of a witness whom the defendant
knows will testify falsely could constitute obstruction of justice under
§ 3C1.1 of the Guidelines. Washington contends that it could not, and
also that the sentencing court failed to make sufficient findings that any
such perjury was suborned. We observe simply that Washington’s basic
contention is not well-taken, but that the factual predicate underlying his
proposition presents, in this case, a close question. In determining what
constitutes "subornation of perjury" for purposes of the Guidelines, we
look to the "definition that has gained general acceptance and common
understanding" under the subornation of perjury statute, i.e., 18 U.S.C.
§ 1622. See United States v. Dunnigan, 507 U.S. 87, 94 (1993) (applying
definition of perjury under § 1621 to § 3C1.1 enhancement for perjury).
And a person suborns perjury by procuring another to commit perjury.
See § 1621 (defining perjury); Petite v. United States, 262 F.2d 788, 794
(4th Cir. 1959), vacated on other grounds, 361 U.S. 529 (1960) (estab-
lishing three elements of crime of subornation of perjury).
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